Iannella v French

Iannella v French - [1968] HCA 14 - HCA 1968 case summary — Zoe

[46]

There is no reason, in my opinion, for the offence created by s. 56a to be one of absolute liability in order to effect the evident purposes of the statute. Thus even without the word "wilfully" there would be a real question whether or not mens rea was an element of the offence the section creates. Section 56 (3) of the Act makes the excess of the sum demanded or recovered over the permissible maximum rent recoverable from the landlord by the tenant: thus there is no need for absolute criminal liability to enable that recovery or to make the satisfied demand of the landlord financially unprofitable. Nor do I see such a need merely to catch the hapless victim whom Lord Evershed had in mind. The criminal offence in this case is created, it seems to me, on the one hand in the expectation that it will deter landlords who might be tempted otherwise to risk the recovery by the tenant of the overcharged rent and, on the other hand, to express the community's disapproval of a defiant or contumacious act on the part of the landlord. In either case, the requirement of mens rea would be appropriate and to dispense with it, in my opinion, quite inappropriate. Then the demand is to be of an irrecoverable rent. It seems to me that the intention with which the demand must be made must be not merely an intention to obtain by the demand a sum of money: the intention, in my opinion, must be to achieve the full consequence of the demand, to obtain as it were, its forbidden fruit. This would indicate, in my opinion, the need for the existence of either an actual or an imputed consciousness of the wrongdoing involved in the demand. By including an imputed consciousness in that connexion, I mean to leave room for the concept of recklessness, or culpable indifference as an equivalent of knowledge or consciousness of the quality of the act performed. In short, apart from the influence of the word "wilful", there is much to be said for the view that the terms of this section require that the defendant should know that his demand is wrongful. A finding that he had an honest belief that his act was proper and lawful denies that knowledge.

[62]

Section 56a creates penal sanctions for wilful deviations from such a notice in demanding or recovering rent or in making agreements. In determining the questions at issue it is convenient to begin with the operative words of s. 56a (1). These words would be satisfied by any act which results in a demand for rent or a recovery of a sum as rent. I think that "demands" of itself in this context contains an intentional element and that "recovers" also does. But "wilfully" is not a surplus word. Mens rea is not conveyed by "demands" or "recovers". This is made a positive element of an offence under s. 56a (1). This element is introduced by the word "wilfully". I think that this word would play its intended part in the sub-section if it is taken to mean with wilful intent. These words are not accompanied by any opprobrious adverb, for example, maliciously, dishonestly. There is nothing in the Act which allows an enlargement of the ordinary sense of wilfully. It should not be read with a gloss involving that result. The word is used to express a specific state of mind that must accompany the commission of the overt acts prohibited by the sub-section, which I would describe as wilfulness. The enlargement of the interpretation of the word by including a gloss would weaken the control of rentals sought by the legislature because excuses for not adhering to it would be indefinitely increased. The circumstances of the present case are that the applicant let the house in question under a written agreement of tenancy for a term of one year at a rent the amount of which exceeded the maximum rental which the housing authority fixed by a notice in force under Pt VII of the Act applying to the house. The applicant regularly asked for and collected rent at the amount fixed by the agreement. These acts of themselves prove prima facie that sums of money, irrecoverable by reason of sub-ss. (1) and (2) of s. 56, were wilfully demanded and recovered on the dates alleged in the complaint. The question is whether the applicant's belief that the provisions of Pt VII were not continuing in operation is capable of disproving mens rea. Here the respondent does not impugn the sincerity or genuineness of the belief. Taking the word "wilfully" in its ordinary sense and speaking of its application to conduct generally, a deed for which ignorance, accident or compulsion can be pleaded as an excuse is not a wilful deed. Ignorance only is relevant here. It is necessary to limit the subject matter in respect of which an offender under s. 56a (1) should be ignorant if he is to be excused on such ground. He should, I think, be ignorant about something within the purview of this sub-section. The central matter is the notice fixing a maximum rental, proved by the prosecutor. An offence under s. 56a (1) can only be committed in respect of a notice of that kind. There are no provisions making a notice proof against mistake or ignorance. Having regard to the mixed classes of possible offenders against s. 56a (1) and that by reason of s. 56 (1) a notice fixing a maximum rental survives all changes of ownership or occupation of the house to which it applies it is reasonable to assume that some persons in those classes may act contrary to the notice owing to ignorance of its existence or mistake as to essential matters covered by it. To my mind there is no ground for the presumption that the legislature expressly made mens rea a necessary ingredient of an offence under s. 56a (1) out of consideration for persons who might think that this is a temporary Act and the period of its operation has ceased. I am unable to strain the meaning of "wilfully" to admit of such a mistaken belief in this context, even though sincere and not just fancy, to be pleaded as an excuse for any contravention of s. 56a (1). The word "wilfully" does not, in my judgment, apply in relation to any matter beyond the purview of this sub-section. An offender's mistake or ignorance with respect to the continuance of the provisions of Pt VII is not disproof of mens rea in the view I take as to the interpretation and application of "wilfully" in s. 56a (1). I would dismiss the motion. Taylor J.

[99]

assuming his mind to be sufficiently normal for him to be capable of criminal responsibility, it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged. When the word "wilfully" forms part of the description of an offence what is meant is an act done with knowledge of all the facts which make it an offence. For the sake of an illustration, suppose that it is an offence to sell bad meat, and that the offence could be committed by a shopkeeper selling bad meat although he did not know that the meat he sold was bad. Yet if the offence were wilfully selling bad meat, then surely no offence would be committed unless the accused knew the meat was bad (or knowing that it might be bad had refrained from examination or inquiry). That would be because, using the words of Jordan C.J., the badness of the meat was an "essential factual ingredient of the crime charged". The accused could not be guilty if he had honestly and reasonably believed the meat he sold was fresh and suitable for human consumption. In such a case it could be said that the word "wilfully" introduced mens rea. It is equally satisfactory to say simply that it formed part of the definition of the offence. Similarly in the present case, the offence is wilfully demanding or receiving as rent a sum which was "irrecoverable". The contrast between the absolute civil obligation to refund an excessive amount (s. 56) and the criminal offence of wilfully demanding or receiving an excessive amount (s. 56a) is illuminating. The adverb "wilfully" must qualify not merely the verb "demands" or "recovers", but those verbs used in relation to their object with its adjectival description. It is wilfully demanding or recovering what? - a sum which is "irrecoverable" because demanded or recovered as rent in respect of a house in respect of which a notice fixing the maximum rent is in fact in force. That is an "essential factual ingredient of the crime charged". 1. [1949] 2 K.B. 354. 2. [1951] 2 K.B. 799. 3. [1952] 2 Ll.L. Rep. 303. 4. [1963] A.C. 160. 5. [1963] N.Z.L.R. 480. 6. [1967] 2 Q.B. 243; [1966] 2 All E.R. 653. 7. (1943) 44 S.R. (N.S.W.) 108, at p. 109.

[124]

The distinction which our law makes for its purposes between law and fact, between questions of law and questions of fact, between mistakes of law and mistakes of fact, is thus by no means as easy as might at first be expected. That it is not absolute is illustrated by the many cases said to turn on a mixed question of law and fact. Then there is the choice between two propositions - on the one hand that of Dixon J. in this Court in Thomas v. The King [1] that "a mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law" - on the other hand the rule that, when the facts are ascertained it is a question of law whether a thing or place answers a particular description in a statute: e.g. Hoddinott v. Newton, Chambers & Co. Ltd. [2] . In his "Note on Fact and Law" in the Modern Law Review, vol. 26, pp. 619-624, Mr. W. A. Wilson has grappled with this matter of description-questions. The topic is not easy and in my view it is not critical in this case. I am however inclined to think the question whether a sum is "irrecoverable" is a matter of fact. It is true that it is the statute law which makes "irrecoverable" "any amount by which the rent of the house is in excess of the maximum rental" (s. 56 (2)). But whether any sum answers that description depends purely on facts. The misconception of the appellant that when he let the house it was no longer subject to a fixed maximum rental seems to me therefore to be aptly called a mistake of fact. But I do not think it necessary for the decision of this case to call the appellant ignorant or mistaken or to classify his mistake as one of fact or of law. That is because, although of course ignorance of the law does not excuse a breach of the law, an essential preliminary question is whether there was a breach of the law. And, unless the accused wilfully demanded or received an excessive sum, he committed no offence. His doing that was, to quote again the words of Jordan C.J., an "essential factual ingredient of the crime"; and he cannot be guilty if he had no knowledge of it. Taking a sentence from the judgment of Darling J. in Frailey v. Charlton [3]

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Judgment (130 paragraphs)

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